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THIRD PARTY WIDGET DEVELOPER AGREEMENT
To register as a Widget Developer with uLocate Communications, Inc. ("uLocate"), you must accept the terms and conditions of this Third Party Widget Developer Agreement (the "Agreement") and complete the Widget Registration Form.
This THIRD PARTY WIDGET DEVELOPER AGREE?MENT (the "Agreement") is by and between uLocate Communication, Inc., a Delaware corporation, with offices at 60 Canal Street, 2nd floor, Boston MA 02114 ("uLocate"), and the individual or the company identified in the Widget Registration Form which you completed (the "Widget Developer") and is effective as of the date of your acceptance into the Third Party Widget Developer Program.
In consideration of the mutual promises contained herein, the parties agree as follows:
1.0 DEFINITIONS.
1.1 "Widget" shall mean the computer software program described in the Widget Registration Form.
1.2 "Data" shall mean any information provided directly by Widget Developer to an End User during use of the Widget by an End User.
1.3 "End User" shall mean an individual who downloads and uses a Widget in order to access Data.
1.4 "End User Data" shall mean the end user's identity, phone number, email address, wireless carrier account information, billing or credit information, the type of wireless device, location information, usage of the Widget, and any other personally identifying information captured by and used within the WHERE platform to operate the Widget.
2.0 WIDGET DEVELOPMENT OBLIGATIONS AND LICENSES.
2.1 uLocate hereby grants to Widget Developer a non-exclusive, non-transferable, royalty-free license to use the uLocate widget development tools (the "Widget Development Tools") made available by uLocate to Widget Developer to create the Widget. uLocate shall retain all right, title, and interest in the Widget Development Tools, including, but not limited to all intellectual property rights therein, and Widget Developer shall have no ownership interest therein.
2.2 Widget Developer shall develop the Widget. Upon completion of the development of the Widget, Widget Developer shall deliver a copy of the Widget to uLocate and/or demonstrate the operation of the Widget to uLocate. uLocate shall have the right to accept or reject the Widget. In the event of rejection, Widget Developer may, in its sole discretion, attempt to correct any of the reasons for the rejection. In such event upon correction, Widget Developer shall provide uLocate with a revised Widget for testing as soon as reasonably practicable, in accordance with the provisions set forth above. Alternatively, in the event of any rejection, uLocate may, in its sole discretion, terminate this Agreement.
2.3 If the Widget is accepted by uLocate then Widget Developer shall automatically grant to uLocate a non-exclusive, worldwide, assignable, royalty free, perpetual license to display, distribute, copy, and use the Widget and Data and to sublicense and authorize the granting of sublicenses thereof to End Users. Widget Developer shall retain all right, title, and interest in the Widget, including, but not limited to all intellectual property rights therein, and uLocate shall have no ownership interest therein. Widget Developer shall retain all right, title and interest in the Data, including, but not limited to all intellectual property rights therein, and uLocate shall have no ownership interest therein.
2.4 Upon acceptance of the Widget, uLocate shall make such Widget available for End Users to download to their wireless device from www.where.com and from certain wireless carriers.
2.5 Widget developer agrees that it has no ownership rights as regards any End User Data and agrees that it shall not use any End User Data in any way or for any purpose, except as provided herein.
2.6 Widget Developer will ensure that the availability and delivery of Data is available on a continuous, 24 hour a day, seven (7) days a week basis. Widget Developer will ensure that such Data is available for End Users to download from the Widget on average 99.5% of the time during each calendar month. This excludes scheduled maintenance periods.
3.0 TRADEMARK LICENSE.
3.1 Widget Developer hereby grants to uLocate a worldwide, assignable, royalty free perpetual license, with the right to sublicense and authorize the granting of sublicenses, to use both Widget Developer's name and any stylized form or logo used by Widget Developer (the "Trademarks") solely in its distribution, advertising and promotion of the Widget, provided that such Trademarks are used solely in accordance with Widget Developer's specifications as to style, color, and typeface, as such specifications may be modified by Widget Developer from time to time. Notwithstanding the foregoing, Widget Developer agrees that uLocate may use the Trademarks both on www.where.com in connection with the distribution, advertising and promotion of the Widget and shall be entitled to grant sublicenses to wireless carriers in connection with the distribution, advertising and promotion of the Widget on carrier networks.
3.2 Widget Developer claims exclusive ownership of all right, title, and interest in and to the Trademarks, together with any new or revised trademarks, trade names, and logos that Widget Developer may adopt to identify it or any of its products during the term of this Agreement. uLocate shall not adopt or use any of Widget Developer's Trademarks in any manner whatsoever except as expressly provided herein. uLocate shall not claim any rights in the Trademarks or take any action that threatens or challenges Widget Developer's proprietary rights therein. All goodwill associated with the Trademarks will inure exclusively to the benefit of Widget Developer.
4.0 CONFIDENTIALITY AND PRIVACY.
4.1 The parties agree to maintain in confidence and shall not disclose to any third party the terms and conditions of this Agreement, except as required to enforce the terms and conditions hereof.
4.2 If uLocate accepts the Widget, as provided above, then Widget Developer will be allowed to collect certain End User Data in order to enable the End User to use the Widget. Widget Developer will not require any End User to provide any End User Data in addition to the End User Data that uLocate approved when it accepted the Widget. In addition, Widget Developer agrees that it shall only use the End User Data in order to allow the End User to use the Widget and that Widget Developer shall not use such End User Data for any malicious, harassing or illegal purposes. Widget Developer shall comply with the uLocate Privacy Policy located at http://where.com/words/where-privacy-policy with respect to End User Data.
5.0 REPRESENTATIONS AND WARRANTIES.
5.1 Widget Developer represents and warrants that (i) the Widget, Data and Trademarks do not infringe or misappropriate any intellectual property rights of any third party, (ii) neither the Widget nor the Data contain any viruses or items, key-lock, counter, or other limiting design, instruction or routine (collectively, limiting routine) designed to or that would (a) disrupt the use of the Widget, any network or any system, device or software to which the Widget is interfaced or connected or (b) destroy or damage data or make data inaccessible or delayed, (iii) neither the Widget or the Widget Developer shall use the End User Data for any malicious, harassing or illegal purposes, (iv) it shall employ administrative, physical and technical safeguards that prevent unauthorized collection, access, disclosure and use of the End User Data, and (v) it shall comply with all applicable laws, rules and regulations.
5.2 Upon reasonable request, whether initiated via telephone, facsimile or fax, Widget Developer will provide technical support services to uLocate. Technical Support will include, but is not limited to, consultation on the operation and utilization of the Widget and problem resolution for failures of the Widget as reported by uLocate. Widget Developer will respond to all technical support requests within 3 hours.
6.0 INDEMNIFICATION.
Widget Developer shall defend, indemnify and hold harmless uLocate, and its officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all losses, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) resulting from or arising out of any breach of this Agreement.
7.0 LIMITATION OF LIABILITY.
IN NO EVENT SHALL ULOCATE, ITS AFFILIATES, OR ANY THEIR RESPECTIVE AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF ULOCATE, ITS AFFILIATES, AND THEIR AGENTS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100.00).
8.0 TERM AND TERMINATION.
8.1 This Agreement shall commence on the Effective Date and shall remain in force until terminated as provided herein.
8.2 Widget Developer may terminate this Agreement by providing uLocate with (30) thirty days prior written notice. uLocate may terminate this Agreement at any time for its convenience, for no reason or for any reason, upon delivery of written notice to Widget Developer. Further, uLocate may remove the Widget at any time from availability for download without notice to Widget Developer and with or without termination of this Agreement.
8.3 This Agreement may be terminated by a party for cause immediately upon the occurrence of and in accordance with the following:
8.3.1 Either party may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) the other party makes a general assignment for the benefit of its creditors; (iii) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, which proceedings are not dismissed within sixty (60) days; or (iv) the other party becomes insolvent or is liquidating, dissolving, or ceasing business operations.
8.3.2 Either party may terminate this Agreement effective upon written notice to the other if the other party violates any covenant, agreement, representation or warranty contained herein in any material respect or defaults or fails to perform any of its obligations or agreements hereunder in any material respect, which violation, default or failure is not cured within thirty (30) days after written notice thereof from the non-defaulting party stating its intention to terminate this Agreement by reason thereof.
8.4 Sections 4, 5, 6, 7 and 9 shall survive termination or expiration of this Agreement.
9.0 MISCELLANEOUS.
Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. The parties are independent contractors under this Agreement and no other relationship is intended. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by facsimile confirmed by first class mail (registered or certified), to the other party. Notices will be deemed effective: (i) three (3) business days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by facsimile and confirmed as set forth above. Widget Developer may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of uLocate. Any attempted assignment or delegation without uLocate's prior written consent will be void. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties. If, for any reason, a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Except to protect any intellectual property rights, for which either party has the right to commence proceedings in any court of competent jurisdiction to obtain equitable relief, this Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the Commonwealth of Massachusetts and the United States, without regard to the conflicts of laws provisions thereof. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the state courts of the Commonwealth of Massachusetts for the County of Suffolk and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. This Agreement, including all exhibits which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
I am 14 or over and agree with the above Third Party Widget Developer Agreement,
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